Constitutional law - Seventh Circuit applies Ex parte Young doctrine to allow state agency's action against state officials - Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration.

Article VI of the Constitution establishes the supremacy of federal
law over the states, while the Eleventh Amendment grants the states
immunity from suit without their consent. (1) The incompatibility of
these provisions becomes apparent, however, when a defendant state
asserts its immunity in response to an attempt to enforce a valid
federal law in federal court. (2) This constitutional contradiction
recently divided two circuit courts ruling on suits brought under the
same state-managed federal program: the Fourth Circuit held the Eleventh
Amendment barred a state agency from enforcing the program's
requirements against state officials in federal court, while the Seventh
Circuit held the amendment posed no bar. (3) This Case Comment analyzes
the Seventh Circuit's decision in Indiana Protection & Advocacy
Services v. Indiana Family & Social Services Administration (4) and
concludes that the court was correct in holding an independent state
agency's suit against named state officials can be heard in federal
court under the Supreme Court's Eleventh Amendment exception, the
doctrine of Ex parte Young. (5)

In 1986, Congress enacted the Protection and Advocacy for
Individuals with Mental Illness Act (PAIMI Act) and provided each state
with funds to establish an independent protection and advocacy system to
safeguard the rights of the mentally ill. (6) The PAIMI Act requires
that these systems receive access to all records of the individuals for
whom they advocate and authorizes these systems to pursue legal remedies
in federal court when necessary. (7) Indiana designated an independent
state agency, Indiana Protection and Advocacy Services (IPAS), as its
protection and advocacy system under the PAIMI Act. (8)

Pursuant to the PAIMI Act, IPAS requested the records of two
patients during an investigation into allegations of abuse and neglect
at a state-operated psychiatric hospital. (9) The hospital, while
supplying some of the patient information, denied IPAS's requests
for more extensive disclosure. (10) As a result, IPAS filed suit in
federal district court, seeking to enjoin the State of Indiana, the
Indiana Family and Social Services Administration, and three named state
officials from restricting IPAS's reasonable access to all records
the PAIMI Act covers. (11) In response, the defendants argued the PAIMI
Act did not require the hospital to release the records at issue. (12)
The district court granted IPAS's motion for summary judgment, the
defendants appealed, and a panel of the Seventh Circuit reversed. (13)

The panel raised the issue of Indiana's constitutional
immunity from suit in federal court sua sponte, holding the Eleventh
Amendment barred IPAS's federal action. (14) Moreover, the panel
held that the Ex parte Young doctrine--which allows suits for
prospective relief against state officials (in their official
capacities) in federal court--would not lift the constitutional bar,
reasoning that the doctrine does not apply when one arm of a state sues
another. (15) IPAS successfully petitioned for rehearing en banc, and
the court of appeals affirmed the district court's ruling with
modifications. (16) The court held that, while the Eleventh Amendment
barred the suit against the State of Indiana and its Family and Social
Services Administration, the Ex parte Young doctrine authorized the
claim against the three named state officials. (17)

The text of the Eleventh Amendment shields states from suits in
federal court brought by citizens of other states or nations. (18) The
Supreme Court has held that the fundamental principle of sovereign
immunity underlies the amendment's text, derived from a
longstanding English legal tradition that subjects could not sue the
king. (19) The Court has concluded that America's founding
generation considered state sovereignty an integral part of the
federalist structure and thus adopted the Eleventh Amendment with
"swiftness and near unanimity." (20) In a long line of cases,
the Court has broadened Eleventh Amendment immunity to bar suits by a
state's own citizens and to shield state agencies and officials.
(21) The Court has concurrently carved out three exceptions to the bar:
waiver--a state may waive its Eleventh Amendment immunity by consenting
to be sued in federal court; (22) abrogation--Congress may abrogate a
state's Eleventh Amendment immunity pursuant to Section 5 of the
Fourteenth Amendment; (23) and the Ex parte Young doctrine--a plaintiff
may seek prospective relief against state officials (though not the
state itself) in federal court for ongoing violations of federal law.
(24)

In Ex parte Young, (25) the Court reasoned that officials no longer
represent the state when they act contrary to federal law and,
consequently, they relinquish the protection of the Eleventh Amendment.
(26) Ex parte Young, decided in 1908, produced a doctrine enabling
federal courts to enforce federal law pursuant to the Supremacy Clause
while nominally respecting state sovereignty. (27) The Ex parte Young
doctrine, however, is not absolute: in Idaho v. Coeur d'Alene Tribe
of Idaho, (28) the Court held state sovereignty interests outweighed the
supremacy interests Ex parte Young promotes, even when the doctrine was
clearly applicable. (29) A majority of the Court upheld Idaho's
Eleventh Amendment immunity in the case; two justices went even further,
calling for a careful balancing of state interests before applying Ex
parte Young and cautioning against "a reflexive reliance on an
obvious fiction." (30) Five years later, in an apparent limitation
of Coeur d'Alene, the Court in Verizon Maryland Inc. v. Public
Service Commission of Maryland (31) lifted the Eleventh Amendment bar
and reiterated that "a court need only conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective"
for Ex parte Young to apply in a suit against state officials. (32)

In Virginia v. Reinhard, (33) however, the Court of Appeals for the
Fourth Circuit declined to conduct the straightforward inquiry
prescribed in Verizon Maryland and instead revived the Coeur
d'Alene balancing test. (34) The Virginia Office for Protection and
Advocacy (VOPA), an independent state agency created under the PAIMI
Act, sued three Virginia state officials in federal court, seeking
injunctive relief to gain access to patient records pursuant to federal
law. (35) The Fourth Circuit, while acknowledging the facts of the case
appeared to meet Ex parte Young standards, pointed to one critical
difference: the plaintiffs in Ex parte Young and its progeny were
private parties, while the plaintiff in Reinhard was a state agency.
(36) Bringing an "intramural contest" between a state agency
and state officials into federal court, the court reasoned, too greatly
infringed on the sovereign dignity of the state. (37) The court,
therefore, held that the plaintiff's status as a state agency
tilted the Coeur d'Alene balance in the state's favor; as a
result, Virginia's Eleventh Amendment immunity barred the suit.
(38)

Ten months later, in Indiana Protection & Advocacy Services v.
Indiana Family & Social Services Administration, the Court of
Appeals for the Seventh Circuit embraced Verizon Maryland's
straightforward inquiry and used Ex parte Young to lift the Eleventh
Amendment bar. (39) Like Reinhard, the facts in Indiana Protection
concerned an independent state agency suing state officials to enforce
provisions of the PAIMI Act in federal court. (40) Unlike the Fourth
Circuit, the Seventh Circuit held the agency's suit satisfied all
Ex parte Young criteria, as IPAS: named individual state officials as
defendants; alleged an ongoing violation of federal law--refusal to
disclose records subject to the PAIMI Act; and sought relief that was
prospective--future access to those records. (41) The court dismissed
the defendants' contention that the case was a state-level
interagency dispute. (42) IPAS, the court averred, was not a traditional
state agency: its independence from state control over policy, budget,
personnel, and governance made it more like an agent of the federal
government than of the state. (43) Moreover, the court said its proper
focus, consistent with Ex parte Young, should be on the identity of the
defendants and the relief sought, not on the identity of the plaintiff.
(44)

The court noted that Indiana had neglected to raise its Eleventh
Amendment immunity as a defense in the first two rounds of litigation,
thus weakening the state's arguments about any injuries to its
sovereign dignity. (45) The court rejected the Coeur d'Alene
balancing test as an anomaly, maintaining that the Supreme Court and
several circuit courts had abandoned it. (46) Even Chief Judge
Easterbrook, who raised the issue of Indiana's Eleventh Amendment
immunity during the first appellate hearing, joined the majority in
accepting Verizon Maryland's straightforward approach and in
disagreeing with the Fourth Circuit's holding in Reinhard. (47)

The conflicting holdings in Indiana Protection and Reinhard
illustrate two distinct theoretical strains characterizing the Supreme
Court's Eleventh Amendment jurisprudence. (48) Professor Carlos
Manuel Vazquez categorized these two approaches as the "supremacy
strain" and the "state sovereignty strain." (49) The
supremacy strain, embodied in the Ex parte Young doctrine and grounded
in the Supremacy Clause of the Constitution, emphasizes the practical
need for Eleventh Amendment exceptions in order to carry out valid
federal acts despite the resistance of state officials. (50) As Dean
Erwin Chemerinsky noted: "The importance of this basic
principle--that sovereign immunity does not bar suits against state
officers for injunctive relief--cannot be overstated. The decision in Ex
parte Young long has been recognized as essential to ensuring state
compliance with federal law." (51) Proponents of the state
sovereignty strain, however, view the Eleventh Amendment as the
expression of a fundamental constitutional principle governing the
balance of power between the federal government and the states. (52) The
Hamiltonian maxim that "[i]t is inherent in the nature of
sovereignty not to be amenable to the suit of an individual without its
consent," best expresses the rationale behind the state sovereignty
strain. (53) Reinhard exemplifies the historical and structural focus of
the state sovereignty strain. (54) Indiana Protection exemplifies the
mechanistic, results-oriented approach of the supremacy strain. (55)

In Indiana Protection, the Seventh Circuit, sitting en banc,
rejected all state sovereignty arguments and decided the case in
adherence with the most recent Supreme Court precedent, Verizon
Maryland. (56) The court applied the Ex parte Young doctrine to enforce
Indiana's compliance with the PAIMI Act's disclosure
requirements. (57) The doctrine was appropriate: IPAS named state
officials as defendants, alleged ongoing violations of federal law, and
sought prospective relief. (58) Regarding IPAS's status as a state
agency plaintiff, however, the court had no controlling authority on
which to rely. (59) while IPAS does not function as a state agency in
the traditional sense, its structure is that of a state agency, though
insulated from state control by federal law. (60) The court did observe,
however, that allowing a state to render the PAIMI Act unenforceable
simply by designating an independent state agency instead of a private
party as its statutory protection and advocacy system would be
"strange indeed." (61) Furthermore, the court noted that the
identity of the plaintiff is not material to the Ex parte Young formula.
(62)

The Supreme Court will likely address the applicability of Ex parte
Young to independent-state-agency plaintiffs when it hears Reinhard
during the 2010 term. (63) In resolving the conflict between the
circuits, the Court should side with the reasoning in Indiana
Protection, which hews closely to the Court's most recent Ex parte
Young precedent. (64) It would be self-defeating for the Court to
restrict the doctrine: as one judicial access expert recently observed,
"Ex parte Young, decided over a hundred years ago, remains one of
the most powerful tools to compel states to comply with federal law, not
only for big business but also for disadvantaged individuals." (65)
Even under the Coeur d'Alene balancing test, it is difficult to see
how enforcement of the PAIMI Act would infringe on a state's
sovereign dignity. (66) After all, protecting the rights of individuals
with mental illness does not conflict with the sovereign interests of
the state; indeed, protecting their rights furthers the interests of
society as a whole. (67)

The Supreme Court should confirm that independent state agencies
may bring Ex parte Young actions against state officials under the PAIMI
Act. IPAS brought its suit seeking prospective relief against state
officials (in their official capacities) in federal court, alleging an
ongoing violation of federal law--the refusal of the state-operated
hospital to disclose patient records. Therefore, for the reasons
detailed above, the Seventh Circuit's holding in Indiana Protection
should pass constitutional muster.

(1.) See U.S. CONST. art. VI, cl. 2 ("This Constitution, and
the Laws of the United States ... shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby...."); U.S.
CONST. amend. XI ("The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced ...
against one of the United States....").

(5.) See generally Verizon Md. Inc. v. Pub. Serv. Comm'n of
Md., 535 U.S. 635 (2002) (explaining how to apply Ex parte Young
doctrine). The doctrine permits a suit in federal court against state
officials in their official capacities for "an ongoing violation of
federal law" so long as the suit seeks "relief properly
characterized as prospective." Id. at 645 (quoting Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O'Connor,
J., concurring)); see also 603 F.3d at 374 (calling state agency's
lawsuit "classic application" of Ex parte Young doctrine).

(6.) See Protection and Advocacy for Individuals with Mental
Illness Act of 1986, 42 U.S.C. [section][section] 1080110851 (2006).
Congress passed the PAIMI Act after finding that "individuals with
mental illness are vulnerable to abuse and serious injury." Id.
[section] 10801(a)(1). Congress based its finding on a nine-month
investigation into the "appalling conditions in many state-operated
mental health institutions." 603 F.3d at 373 n.6 (stressing state
responsibility for condition of institutions). Under the PAIMI Act, each
state can choose to designate an independent state agency or a private
entity as its protection and advocacy system. See 42 U.S.C. [section]
10804 (2006). Only eight states--including Indiana and
Virginia--designated a public, instead of a private, agency as their
PAIMI Act system. See 603 F.3d at 387 (Posner, J., concurring)
(questioning why Congress gave option for either public or private
agency); see also Substance Abuse & Mental Health Servs. ADMIN.,
U.S. DEP'T OF HEALTH & HUMAN SERVS., PROTECTION AND ADVOCACY
FOR INDIVIDUALS WITH MENTAL ILLNESS (PAIMI) PROGRAM (2003).

(7.) See 42 U.S.C. [section][section] 10805, 10807 (2006). The
PAIMI Act permits systems to access not only the records of clients, but
also the records of individuals who are unable to authorize access, who
do not have legal guardians, or who may have been subject to abuse and
neglect. Id. [section] 10805(a)(4)(B). Systems may institute actions in
either federal or state court, but only after exhausting all
administrative remedies within a reasonable time. See id. [section]
10807(a).

(8.) See 603 F.3d at 368 (enumerating factors supporting
agency's independence). A board of thirteen people governs IPAS,
only four of whom the governor appoints--the IPAS board itself votes on
the remainder. See id. Officials or employees of state mental health
agencies may not serve on the IPAS board. See id. After establishing
IPAS as its system, Indiana may not designate another system without
good cause. See id.

(9.) See id. at 368-69 (detailing histories of patients known as
Patient 1 and Patient 2). Patient 1 was admitted to the Larue Carter
Memorial Hospital (Larue Carter) on June 21, 2006, and died at another
hospital on July 31, 2006. See id. at 368. IPAS received information
from a staff member at Larue Carter that triggered IPAS's
investigation into Patient 1's treatment at the hospital. See id.
Patient 2 authorized IPAS to access his records after filing grievances
with Larue Carter and IPAS, alleging battery, assault, and attempted
murder. See id. at 369; see also Ind. Prot. & Advocacy Servs. v.
Ind. Family & Soc. Servs. Admin., 573 F.3d 548, 550 (7th Cir. 2009)
(providing additional information on Patient 1), aff'd en banc, 603
F.3d 365 (7th Cir. 2010).

(12.) See id. at 370 (listing defendants' reasons for records
denial). The State also argued that IPAS did not obtain the consent of
Patient 1's parents. See id.

(13.) See id. (noting appeal limited to records issue); see also
Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs.
Admin., 573 F.3d 548, 550 (7th Cir. 2009) (summarizing district
court's holding), aff'd en banc, 603 F.3d 365 (7th Cir. 2010).
The district court found that Patient 1 was an adult at the time of her
death and her parents had not been appointed as her legal guardians,
placing her within the ambit of the PAIMI Act. See Ind. Prot. &
Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 573 F.3d 548,
550 (7th Cir. 2009) (summarizing district court's holding),
aff'd en banc, 603 F.3d 365 (7th Cir. 2010). The state argued on
appeal that parents of mentally ill adults should be treated as their
guardians regardless of court appointment, and any further disclosure
should require the approval of Patient 1's parents. See id.

(18.) See U.S. CONST. amend. XI. The Eleventh Amendment states:
"The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." See id.; see also, e.g., Alden v.
Maine, 527 U.S. 706, 716-27 (1999) (summarizing ratification debates);
Edelman v. Jordan, 415 U.S. 651, 660-62 (1974) (reviewing historical
basis of Eleventh Amendment); Chisholm v. Georgia, 2 U.S. 419, 479
(1793) (holding state "suable" by citizens of another state,
thus sparking Eleventh Amendment's enactment). See generally Scott
Dodson, The Metes and Bounds of State Sovereign Immunity, 29 HASTINGS
CONST. L.Q. 721, 727-33 (2002) (discussing development of state
sovereign immunity concept during formation of new federal government).

It is inherent in the nature of sovereignty not to be amenable to
the suit of an individual without its consent. This is the general
sense and the general practice of mankind; and the exemption, as
one of the attributes of sovereignty, is now enjoyed by the
government of every state in the Union.

(20.) Alden v. Maine, 527 U.S. 706, 724 (1999). The opinion by
Justice Kennedy states further: "[A]s the Constitution's
structure, its history, and the authoritative interpretations by this
Court make clear, the States' immunity from suit is a fundamental
aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain today." Id.
at 713; see also Dodson, supra note 18, at 728 (noting states'
relinquishment of some but not all sovereign immunity in ratification of
Constitution). But see Alden v. Maine, 527 U.S. 706, 764 (1999) (Souter,
J., dissenting) ("Some Framers thought sovereign immunity was an
obsolete royal prerogative inapplicable in a republic....");
Edelman v. Jordan, 415 U.S. 651, 687 (1974) (Brennan, J., dissenting)
(calling sovereign immunity a "nonconstitutional but ancient
doctrine").

(24.) See Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645 (2002) (explicating straightforward application of Ex
parte Young doctrine). Dean Erwin Chemerinsky harmonized the Ex parte
Young doctrine with the sovereign immunity principle by stating:
"The principle that government officers can be sued for injunctive
relief, even where the government itself cannot be named as a defendant,
can be traced to English law. Although the King could not be sued, the
King's officers could be named as defendants." Erwin
Chemerinsky, Ensuring the Supremacy of Federal Law: Why the District
Court Was Wrong in Westside Mothers v. Haveman, 12 HEALTH MATRIX 139,
144 (2002).

(25.) 209 U.S. 123 (1908).

(26.) See Ex parte Young, 209 U.S. 123, 159-60 (1908) (stripping
state officials of official character when acts violate Constitution).
In Ex parte Young, the Court permitted shareholders of a railroad
company to file suit in federal court to enjoin Minnesota's
attorney general from enforcing certain allegedly unconstitutional
criminal penalties against the railroad company. See id. at 127-33. The
attorney general raised Eleventh Amendment state immunity as a defense
to the suit. See id. at 133. The Court, however, held "the state
has no power to impart to him any immunity from responsibility to the
supreme authority of the United States." Id. at 160.

(27.) See U.S. CONST. art. VI, cl. 2 ("This Constitution, and
the Laws of the United States which shall be made in Pursuance thereof
... shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby ...."); see also Green v. Mansour, 474 U.S.
64, 68 (1985) (discussing Ex parte Young's role in upholding
Supremacy Clause). The Court reasoned that "the availability of
prospective relief of the sort awarded in Ex parte Young gives life to
the Supremacy Clause. Remedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in assuring
the supremacy of that law." Green v. Mansour, 474 U.S. 64, 68
(1985); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 105 (1984) (stressing importance of Ex parte Young doctrine). The
Court stated: "Our decisions repeatedly have emphasized that the
Young doctrine rests on the need to promote the vindication of federal
rights." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 105 (1984); see also Rochelle Bobroff, Ex parte Young as a Tool to
Enforce Safety-Net and Civil-Rights Statutes, 40 U. TOL. L. REV. 819,
819 (2009) (maintaining even conservative justices with federalist
agenda value Ex parte Young doctrine); Vazquez, supra note 19, at 868
(demonstrating Young's utility in harmonizing Eleventh Amendment
with Supremacy Clause).

(28.) 521 U.S. 261 (1997).

(29.) Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,
287-88 (1997). In Coeur d'Alene, a federally recognized Indian
tribe brought a federal action against Idaho state officials, claiming
vast tracts of state property in what amounted to a quiet title action
based on federal orders dating back to 1873. See id. at 264-65.

(30.) Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270
(1997); see also Althouse, supra note 21, at 1123 ("Legal fiction
permeates eleventh amendment analysis."). In Coeur d'Alene,
Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas
joined Justice Kennedy's five to four majority opinion. See Idaho
v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 262-63 (1997). Only
Chief Justice Rehnquist, however, joined Justice Kennedy's
three-part disquisition on the need to tailor the Ex parte Young
doctrine to the dignity of the state. See id. at 270-81. Justices Scalia
and Thomas joined in Justice O'Connor's concurrence, which
criticized Justice Kennedy's three-part disquisition for
unnecessarily narrowing the Court's Ex parte Young jurisprudence.
See id. at 291 (O'Connor, J., concurring). Justice O'Connor,
in a view seven members of the Court share, further criticized that part
of the opinion for attempting to replace "a straightforward inquiry
into whether a complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective with a vague
balancing test that purports to account for a 'broad' range of
unspecified factors." Id. at 296; cf. id. at 297-98 (Souter, J.,
dissenting) (expressing "great satisfaction" with Justice
O'Connor's controlling view of Ex parte Young).

(31.) 535 U.S. 635 (2002).

(32.) Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S.
635, 645 (2002) (internal quotations omitted). Justice Scalia delivered
the opinion of the Court, vacating a decision of the Fourth Circuit and
holding that a telecommunications company can sue state commissioners in
federal court under Ex parte Young to enjoin them from enforcing an
order allegedly inconsistent with federal law. See id. at 647-48.
Justice Kennedy filed a concurring opinion emphasizing that the
complaint in Verizon Maryland did not implicate the same state
sovereignty interests as did the one in Coeur d'Alene. See id. at
648-49 (Kennedy, J., concurring).

(34.) See Virginia v. Reinhard, 568 F.3d 110, 119-20 (4th Cir.
2009) (contending sovereign interests hang in balance), cert. granted,
130 S. Ct. 3493 (2010); see also Harrison M. Gates, Article, Closing the
Gap: The Fourth Circuit's Narrowing of the Ex parte Young Exception
in Virginia v. Reinhard and the Implications for Federal Rights, 6 SETON
HALL CIRCUIT REV. 221, 222 (2010) (noting court addressed question of
first impression). The court in Reinhard concluded that
"application of Ex Parte Young must account for the structure of
the federalist system and the sovereign interests at stake." Gates,
supra, at 231.

(35.) See Virginia v. Reinhard, 568 F.3d 110, 113-14 (4th Cir.
2009) (recounting procedural history), cert. granted, 130 S. Ct. 3493
(2010). Unlike the defendants in Indiana Protection, the Reinhard
defendants asserted their Eleventh Amendment immunity before the
district court. See id. at 114. The district court held that the suit
met the Ex parte Young standards and the defendants appealed. See id. at
114-15; see also Gates, supra note 34, at 228 (noting district court
determined Virginia's sovereignty interests not implicated). The
district court "found that the application of the Ex Parte Young
exception did not depend on the identity of the plaintiffs. Rather, the
nature of the action governed the exception." Gates, supra note 34,
at 228.

(36.) See Virginia v. Reinhard, 568 F.3d 110, 118 (4th Cir. 2009)
(citing Ex parte Young cases involving private-party plaintiffs), cert.
granted, 130 S. Ct. 3493 (2010). The court stressed that the identity of
the plaintiff as a private party is basic to the doctrine. See id. at
119-20. The court added that it could not find any precedent applying
the doctrine to a state agency. See id. at 118. One observer
characterized the court's decision as a "new limitation on Ex
Parte Young, [in which] the Court of Appeals drew primarily on
historical and structural analysis which has characterized the Supreme
Court's recent jurisprudence in the area of federalism."
Gates, supra note 34, at 230-31.

(37.) See Virginia v. Reinhard, 568 F.3d 110, 120 (4th Cir. 2009)
(characterizing Ex parte Young application as expansion of doctrine),
cert. granted, 130 S. Ct. 3493 (2010); see also Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 281 (1997) (implicating state
sovereignty interests even when Ex parte Young nominally applies); cf.
Alden v. Maine, 527 U.S. 706, 712 (1999) (cautioning against excessive
federal interference with state authority). See generally Chad Alston
Horner, Annual Survey of Caselaw, Constitutional Law II-Eleventh
Amendment Sovereign Immunity, 22 U. ARK. LITTLE ROCK L. REV. 777, 777-80
(2000) (addressing Court's use of historical and structural
analysis to elucidate sovereignty principles in Alden). One observer
described the Reinhard rationale thusly: "Citing to a series of
cases holding that municipalities [and] political subdivisions of states
could not obtain relief under federal law against the application of
state statutes, the Court of Appeals suggested that states have special
sovereignty interests in 'intramural state conflicts' with
which federal courts should not interfere." Gates, supra note 34,
at 233.

(38.) See Virginia v. Reinhard, 568 F.3d 110, 124 (4th Cir. 2009)
(reaffirming availability of Ex parte Young to private plaintiffs),
cert. granted, 130 S. Ct. 3493 (2010). Regarding the state agency's
independence, the court contended that many state agencies receive
federal funding, govern themselves independently, and must comply with
federal law; allowing these agencies to sue state officials in federal
court would substantially expand Ex parte Young. See id. In other words,
"freedom from interference in a legal battle between state
agencies" was the sovereign interest at stake in Reinhard. Gates,
supra note 34, at 251.

(48.) See Vazquez, supra note 19, at 859-60 (noting two distinct
strains). As Professor Althouse pointed out: "The two sides have
cogently set out their two historical interpretations. Neither side is
moved by the other's historical arguments, because the historical
evidence is nebulous enough that either position can be
maintained." Althouse, supra note 21, at 1130. See generally supra
notes 18-21 and accompanying text (elucidating philosophical
underpinnings of Eleventh Amendment).

(49.) Vazquez, supra note 19, at 859-60 (introducing terms).

(50.) See Vazquez, supra note 19, at 873 (describing Eleventh
Amendment's practical implications). Professor Vazquez concluded:
"Because a state can act (or refrain from acting) only through its
officers, a regime that bars suits against states but permits suits
against state officers would appear to afford states protection as a
matter of form but not substance." Id.; see also supra notes 22-24
and accompanying text (detailing exceptions to Eleventh Amendment
immunity). Professor Monaghan argued that "any doctrine of state
sovereign immunity strains both the traditional conception of the rule
of law, which emphasizes governmental accountability to courts of law,
and national supremacy, which generally presumes that Congress can
entrust enforcement of whatever rights it can validly create to the
national courts." Monaghan, supra note 19, at 122.

(51.) Chemerinsky, supra note 24, at 142-43.

(52.) See Vazquez, supra note 19, at 888-93 (focusing on federalist
debates surrounding Constitution's formation); supra notes 18-21
and accompanying text (emphasizing state sovereignty as philosophical
underpinning to Eleventh Amendment). The Supreme Court in Alden
expressed the principle as follows: "The federal system established
by our Constitution preserves the sovereign status of the States ... it
reserves to them a substantial portion of the Nation's primary
sovereignty, together with the dignity and essential attributes inhering
in that status." Alden v. Maine, 527 U.S. 706, 714 (1999). The
Alden decision "buttressed its historical findings with principles
of normative concerns: the respect for the dignity of states as
sovereigns [and] the alignment of state sovereignty with federal
sovereignty in some semblance of symmetrical sovereignty." Dodson,
supra note 18, at 741. But see Jackson, supra note 19, at 1005 (offering
alternative rationale for Eleventh Amendment immunity). Professor
Jackson asserted: "State sovereign immunity is at the periphery of
those constitutional features that most importantly constitute the
federal union.... A fair reader of history must conclude that the
framing minds held different views on the amenability of states to
suit." Id. In regard to the concept of "sovereign
dignity," Professor Monaghan mockingly noted: "The idea that a
state, an utterly abstract entity, has feelings about being sued by a
private party when 'its' highest officials are regularly so
sued surely strains credulity." Monaghan, supra note 19, at 132.

(53.) THE FEDERALIST No. 81 (Alexander Hamilton). This passage
arguably led the Supreme Court to conclude that sovereign immunity
"inheres" in the Constitution's structure. Dodson, supra
note 18, at 740-41. As Professor Monaghan countered, however, "the
word 'inherent' is both meaningless and misleading. At least
in the context of the historical conception of sovereignty, the word has
no content; the 'inherent' unamenability of sovereigns to suit
is an attribution made by the writer, not a 'property' of the
'entity' described." Monaghan, supra note 19, at 123.

(56.) See 603 F.3d at 372 (giving court's point-by-point
rejection of state sovereignty defenses). But see supra notes 18-21,
36-38 and accompanying text (asserting arguments in favor of state
sovereignty defense).

(57.) See 603 F.3d at 367, 374 (holding PAIMI Act enforceable
against state officials). But see supra notes 36-38 and accompanying
text (discussing Reinhard's shielding of state officials from PAIMI
Act's requirements).

(66.) See supra notes 28-32 and accompanying text (contrasting
seriousness of land dispute in Coeur d'Alene with standard
regulatory issue in Verizon Maryland).

(67.) See supra note 6 and accompanying text (describing
congressional findings and purpose of PAIMI Act). "[T]he conflict
in Reinhard arguably was not one between two state administrative
agencies for power and resources. Rather, the conflict arguably was
between state government caregivers ... and the mental health patients
to whom they had a duty under federal law." Gates, supra note 34,
at 256.

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